The attorney's preparation of a testamentary document (hereinafter sometimes referred to as a will or revocable trust) should clearly and accurately reflect the client's last wishes. Although these testamentary documents should reflect the client's intent, they often fall short of accomplishing that goal. There are numerous examples of will and trust construction cases that exhaust tremendous resources in an effort to ascertain the client's wishes or intent. Many of these cases involve the construction of patent and/or latent ambiguities which should have been resolved by appropriate drafting. This article's scope is limited to patent ambiguities caused by the attorney's negligence and their detrimental impact on third parties. In these situations, the patent ambiguity is easily identified and the claim of negligence is clear. A patent ambiguity is obvious from the face of the will and is easily discovered prior to the testator's death. For example, a patent ambiguity exists where two different provisions of a will dispose of the same plot of land to different devisees. The attorney's close reading of the will should have discovered this error. The attorney's failure to correct the patent ambiguity prior to the testator's death has detrimental consequences for the third party harmed. Extrinsic evidence is generally not admissible to resolve a patent ambiguity, because courts are unwilling to add to or detract from the written words of the will.
Shape up or Ship Out: Accountability to Third Parties for Patent Ambiguities in Testamentary Documents, 26 Whittier L. Rev. 59 (2004)